Changes to Disciplinary Rule Detailed

The Tennessee Supreme Court on Friday adopted a comprehensive amendment overhauling the rules governing disciplinary enforcement for attorneys. As the TBA stated in its comment filed in February in response to the court’s original proposal, the changes represent “a vast improvement of the organization, architecture and clarity” of the disciplinary process. The new rule, however, does not adopt a number of provisions the TBA advocated. The court rejected the TBA’s call for use of the same heightened standard of proof (clear and convincing evidence) that is used by 40 other states as the requirement for disciplining attorneys, and it did not move to limit ex parte communications between the Board of Professional Responsibility and potential hearing panel members. Learn more about the amended Rule 9 here, and at a CLE set for Nov. 15 that will provide a guided tour of what’s new, what’s unchanged and what may continue to be controversial going forward.

Today's Opinions

Click on the category of your choice to view summaries of today’s opinions from that court, or other body. A link at the end of each case summary will let you download the full opinion in PDF format.

You can obtain full-text versions of the opinions two ways. We recommend that you download the Opinions to your computer and then open them from there. 1) Click the URL at end of each Opinion paragraph below. This should give you the option to download the original document. If not, you may need to right-click on the URL to get the option to save the file to your computer.

TN Court of Appeals

IN RE: ESTATE OF JOHN J. GOZA v. JAMES M. WELLS, III, ET AL.

Court: TN Court of Appeals

Attorneys:

Larry E. Parrish, Memphis, Tennessee, for the appellant, Estate of John J. Goza.

Robert E. Cooper, Jr. and Alexander S. Rieger, Nashville, Tennessee, for Petitioner/Appellee State of Tennessee Department of Children’s Services.

Judge: KIRBY

This is a parental termination case. The appellant mother bore the child at issue when she was only 13 years old. After the mother turned 18, she was turned out of her mother’s home and moved often. At that point, the Tennessee Department of Children’s Services intervened and the child was eventually placed in foster care. Months later, DCS filed the instant petition to terminate the mother’s parental rights. In the ensuing bench trial, the proof showed that, during an interim between nonconsecutive trial days, the child was removed from his long-term foster placement and placed with a new foster family. The trial court found several grounds for termination and that termination of the mother’s parental rights was in the child’s best interest. The mother now appeals only the best interest determination. We reverse, on the basis that the record does not contain clear and convincing evidence that termination of the mother’s parental rights is in the child’s best interest.

This is a grandparent visitation case. The trial court awarded visitation to paternal grandparents on the basis of a finding of severe emotional harm to the child if visitation was not granted. The child’s mother and adoptive father appeal. We affirm the trial court’s ruling with regard to the evidentiary and procedural issues, but reverse as to the finding of a likelihood of severe emotional harm. Affirmed in part, reversed in part, and remanded.

TN Court of Criminal Appeals

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General; Randall E. Nichols, District Attorney General; and TaKisha M. Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Cleven Johnson, appeals his Knox County Criminal Court jury conviction of aggravated sexual battery, claiming that (1) the evidence was insufficient to support his conviction; (2) the trial court erred by refusing to grant his motion for mistrial; (3) the trial court erred by admitting photographs of the crime scene, and of a victim’s injuries and by admitting evidence of the defendant’s guilty plea to accompanying offenses; and (4) the sentence was excessive. Discerning no error, we affirm the judgment of the trial court.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Senior Counsel, for the appellee, State of Tennessee.

Judge: OGLE

The petitioner, John Lowery, appeals the Knox County Criminal Court’s summary dismissal of his petition for a writ of error coram nobis. He asserts that newly discovered evidence, namely two witnesses’ recantation of their identification of the petitioner as the shooter and a previously unknown witness who said the petitioner was not at the scene of the crime, warranted a new trial on his convictions of premeditated first degree murder and attempted first degree murder. Upon review, we reverse the judgment of the coram nobis court and remand for an evidentiary hearing.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; William Paul Phillips, District Attorney General; and Scarlett W. Ellis, Assistant District Attorney General, for the appellee, State of Tennessee.

Judge: WITT

The defendant, Daniel Ward, appeals his Campbell County Criminal Court jury convictions of 10 counts of aggravated sexual battery, claiming that the evidence was insufficient to support his convictions, that the bill of particulars was inadequate, that his pretrial statement to police was not voluntarily and knowingly given, and that the 54-year sentence imposed by the trial court was excessive. Because the evidence was insufficient to support the defendant’s conviction of aggravated sexual battery in count six, that conviction is reversed, and the charge is dismissed. The remaining judgments of the trial court are affirmed.

Today's News

Tennessee Bar Journal

Book Details Blanton Ouster and Lawyers' Roles in It

In this issue of the Journal, the Hon. Ellen Lyle and the Hon. Walter Kurtz review and give two thumbs up to the book COUP: The Day the Democrats Ousted Their Governor, Put Republican Lamar Alexander in Office Early, and Stopped a Pardon Scandal. Lawyers played a huge role in the events of that day in 1979, and you will recognize many of them, including Justice Joe Henry, Attorney General Bill Leech, Hal Hardin (who was then U.S. attorney), Justice Bill Koch (then deputy attorney general), Lewis Donelson, Tom Ingram, Justice William Harbison, Judge Tom Wiseman, Ed Yarbrough, Hayes Cooney, David Pack, Jack Lowery and more. You can meet author Keel Hunt along with one of the book's main subjects, Sen. Lamar Alexander, on Sept. 20 at a reception, book signing and lecture at the Sarratt Cinema in Nashville. The event is free and open to the public.

Tenn. Supreme Court

Court Updates Technology Provisions Rule

The Tennessee Supreme Court updated Rule 26 regulating the use of recording equipment in light of technological advances. The rule outlines procedures for recording trial court proceedings and includes provisions for designating the recording as the transcript under the Tennessee Rules of Appellate Procedure. “The use of electronic recording has proven to be an exceptionally accurate and economical method of preserving the trial record and the response from litigants and lawyers in my courtroom has been universally positive,” said Davidson County Circuit Court Judge Thomas W. Brothers.

Passages

Services Set for Franklin Lawyer

Martin Arnold Peebles Jr. died Saturday (Aug. 31). He was 71. Peebles was a long-time attorney and resident of Franklin. The family will visit with friends Friday at 4 p.m. at Oaks & Nichols Funeral Home, with the memorial service immediately following at 6 p.m. Memorials may be made to the Tennessee Supreme Court Historical Society, in care of Joy Day, 341 Cool Springs Blvd., Suite 430, Franklin, TN 37067 or to the charity of one's choice.

Legal News

Ginsburg Officiates Same-Sex Marriage Ceremony

U.S. Supreme Court Justice Ruth Bader Ginsburg became the first justice to conduct a same-sex marriage ceremony Saturday, the Wall Street Journal Law Blog reports. Ginsburg officiated over the Washington, D.C., wedding of Kennedy Center President Michael M. Kaiser to John Roberts, an economist unrelated to Chief Justice John Roberts. “I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Justice Ginsburg told the Washington Post.

Criminal Court Judge Joins Nashville School of Law Faculty

Criminal Court Judge Mark Fishburn has joined the faculty at the Nashville School of Law and will teach his first group of fourth-year students in February. Fishburn, a 1979 graduate of the school, has been a criminal court judge since 2003. Before that, he served as a general sessions judge for three years and worked in private practice for 18 years. The Nashville Post has the story.

DOJ Tackles Quality of Defense for Poor

In an unprecedented court filing, the U.S. Justice Department (DOJ) intervened in a case about the quality of indigent defense in Burlington and Mount Vernon, Washington. According to National Public Radio, plaintiffs in the suit against the two cities claim only two part-time lawyers were handling 2,000 misdemeanor cases. Should a judge find the city governments guilty of systematically depriving people of their Sixth Amendment right to legal counsel, the DOJ urged that an independent monitor be appointed to oversee public defender workloads.

Baker Center Celebrates 10th Anniversary

The Howard Baker Jr. Center for Public Policy at the University of Tennessee celebrated its 10th anniversary today at 4:30 p.m. with an exhibit and reception in the center’s rotunda. “In recognition of the support from Senator Baker, our board, private donors, and the university, we are proud to display and share highlights of our first 10 years of service," Baker Center Director Matt Murray said. "This is a wonderful opportunity to reflect on the fond memories and memorabilia of the past and clarify our sights for the future.

Additional Courtrooms Get More Study

The Rutherford County Commission’s Property Management Committee recently asked for updated estimates for building a new judicial facility a block north of the existing building on the north side of Murfreesboro's public square, the Daily News Journal reports. “I see it as moving onto the commission with a positive note that we need to go ahead and do this project,” said Commissioner Allen McAdoo, who has served on the commission since 1978. “We’ve been looking at this judicial building for 20 years.”

Judges Discuss Domestic Violence and the Court System

Maury County General Sessions Judge Bobby Sands and Circuit Court Judge Stella Hargrove talk to the Columbia Daily Herald about the difficulty of handling an overwhelming docket of domestic violence cases. The county had more domestic violence cases per person in 2011 than any other city in Tennessee, the paper reports. “Our dockets are so overwhelming that we’re apt to let domestic violence slip just to get it off the docket,” Hargrove said. “I guess we feel like we have to do something with this docket out here staring us in the face, when we really should slow down, like I try to do on revocations, try to slow it down and try to get some justice out of this.”

Judicial Selection, Retention

Elected Judge Says He'd Prefer to End Judicial Elections

Texas Supreme Court Justice Don Willet, a successful vote-getter who knows how to win judicial elections, says he finds these contests “toxic to the idea of an impartial, independent judiciary,” Gavel Grab reports. The judge disclosed his desire to bid judicial elections farewell, stating, “I’d be shocked if people didn’t look askance at such a flawed system. I do, too, having had close-up experience spanning several contested statewide races. Nothing would please me, or my wife, more than if my last election were my last election, and between now and 2018, Texans would opt for a smarter system. Hopeful? Yep. Optimistic? Nope.”

About this publication: Today's News is a compilation of digests of news reports of interest to Tennessee lawyers compiled by TBA staff, links to digested press releases, and occasional stories about the TBA and other activities written by the TBA staff or members. Statements or opinions herein are those of the authors and do not necessarily reflect those of the Tennessee Bar Association, its officers, board or staff.